On March 23, the Supreme Court heard oral arguments in Cedar Point Nursery v. Hassid. Broadly, the case pits the rights of unions to communicate with workers who work and largely live on site versus the rights of business owners to keep people off of their private property. More specifically, the case asks whether California’s Agricultural Labor Relations Act, which allows union organizers to be granted temporary access to speak to agricultural employees on worksites—which are largely private property—amounts to a taking of property without just compensation that violated the Fifth Amendment. Hugh Baran and Robert McNamara joined Jeffrey Rosen to explain both sides of the case. McNamara, a senior staff attorney at Institute for Justice, filed an amicus brief in support of Cedar Point Nursery while Hugh Baran, staff attorney and Skadden Fellow at National Employment Law project, filed an amicus brief in support of the chair of the Agricultural Labor Relations Board, Victoria Hassid.
A term that will be helpful to know for this week:
- “Taking”:
- The Takings Clause of the Fifth Amendment to the U.S. Constitution says: “Nor shall private property be taken for public use, without just compensation.”
- A taking is when the government seizes private property for public use.
- Typically, a “just compensation” is determined by an appraisal of the property’s fair market value.
- Courts have broadly interpreted the Fifth Amendment to allow the government to seize property if doing so will increase the general public welfare.
FULL PODCAST
PARTICIPANTS
Robert McNamara is a senior attorney with the Institute for Justice. He co-authored an amicus brief that IJ filed on behalf of petitioners including Cedar Point Nursery.
Hugh Baran is a senior staff attorney and Skadden Fellow at the National Employment Law Project. He co-authored an amicus brief that the National Employment Law Project filed on behalf of Victoria Hassid, the chair of the Agricultural Labor Relations Board and the respondent in this case.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- National Labor Relations Act of 1935
- NLRB v. Babcock & Wilcox Co. (1956)
- Penn Central Transportation Co. v. New York City (1978)
- Janus v. AFSCME (2018)
This episode was produced by Jackie McDermott and engineered by Kevin Kilbourne. Research was provided by Alexandra "Mac" Taylor, Paige Britton, and Lana Ulrich.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. On March 22nd, the Supreme Court heard oral arguments in Cedar Point Nursery versus Hassid. The case could have implications for the future of unions, property rights, and more. Today, we'll explore those implications and recap the argument with two of America's leading experts.
Robert McNamara is senior attorney with the Institute for Justice. He coauthored an Amicus brief that the Institute for Justice filed on behalf of the petitioners, including Cedar Point nursery. Robert, thank you so much for joining.
Robert McNamara: [00:00:55] Thanks for having me. It's great to be here.
Jeffrey Rosen: [00:00:57] And Hugh Baran is a senior staff attorney and Skadden fellow at the National Employment Law project. He coauthored an Amicus brief that the National Employment Law project filed on behalf of Victoria. the chair of the agricultural labor relations board and the respondent in this case, Hugh, it is great to have you with us.
Hugh Baran: [00:01:16] Thank you. It's great to be here to talk about this important case.
Jeffrey Rosen: [00:01:19] Robert, let's begin with you. Tell us what is the California law that's being challenged in the case. And why does the Institute for Justice believe that it violates the takings clause of the Constitution?
Robert McNamara: [00:01:30] So, California law allows union organizers to access agricultural property for three hours a day, several months a year. And a group of farms essentially sued saying, wait a minute, this violates our property rights. There are a bunch of dudes walking around our property and we don't want them there. And that violates our property right. The point of having property is that you can exclude people from your property. And they sue, and the ninth circuit said, well, wait a minute, this isn't a taking of your property because it would only be a taking of your property if they're allowed to have access 365 days a year. As long as there's one day a year when you can exclude them, it doesn't amount to a taking. And the Supreme Court has taken up the case. And a lot of the pary's energy is spent on arguing about whether this is really a permanent physical occupation, because we know a permanent physical occupation is a taking. And the question that they're fighting about is really whether this is enough days and it recurs enough that it counts as a permanent easement. And I think it probably does, as a matter of law, but I'm also not sure that's the only question. And it seems like it's slightly a question wrongly put because there is such a thing as a temporary taking.
In World War II, the federal government seized a laundry owned by the Kimball family to operate as a laundry, to do necessary clothes washing for the troops. And everyone agreed that was a taking. They took the laundry and they gave the laundry back at the end of the war. They didn't keep the laundry forever, but everyone understood that that was a taking, even though it was temporary because if the government takes your property, it's a taking, even if later on the government gives your property back. And so it seems to me that the physical invasion of the property, against the property owner's will, is a taking. And if the government needs to take property for some important public use, the government has to pay for the property it takes.
Jeffrey Rosen: [00:03:23] Thank you very much for that. Hugh, tell us more about why the California law was passed in 1975. It resulted from a campaign led by Cesar Chavez and other organizers of what became the United Farm Workers. And it provides, it was one of the first laws in the country to protect the labor rights of farm workers. Tell us what the law was trying to achieve and why your side believes that it does not violate the Constitution.
Hugh Baran: [00:03:54] Sure. So I think first it's important to talk about the historical context here. During the New Deal, farm workers were completely excluded from both the minimum wage protections of the fair labor standards act, which is the main law that guarantees at the federal level our rights to minimum and overtime wages and to labor rights protections from the national labor relations act. These exclusions were racially motivated. They were about Southern planters who were fighting to preserve Jim Crow and to keep black workers destitute and disempowered, as well as Latino workers and other workers of color. To this day, the national labor relations act excludes farm workers and farm workers don't enjoy the full wage and hour protections of federal law that other workers do. So in the 1960s, as you alluded to in California, there were waves of migration of workers from Mexico, from Asia and from other parts of the country that along with really quite terrible working conditions, helped fuel a powerful movement among farm workers, which ultimately became the United Farm Workers union.
And workers joined together and fought for years to win not only wage increases, but also a range of other workplace protections in the fields, including health and safety protections and the right to unionize, to have a say in the conditions of their work. There were violent clashes in the field sometimes between growers, workers and unions and Sheriff's deputies. Those led to arrests, injuries, and even deaths. And ultimately, all of the organizing, all of the movement building pressure from the workers, from consumers, from law enforcement themselves that was overwhelmed by growers sort of demands that they protect their rights. All of that, ultimately coalesced in passage of the California agricultural labor relations act in 1975. That law created a state agency, the agricultural labor relations board, that was designed to create labor peace in the fields by guaranteeing both justice for workers and stability and labor relations, including by safeguard at guarding workers rights to join and form unions and to collectively bargain free from employer intimidation.
Shortly thereafter, the California agricultural labor relations board enacted what the access rule that's at issue in this case. It permits union organizers to make an application to go onto the work site for certain limited non-working hours. So, an hour before and after work and during lunch break. For a total of up to three hours a day for no more than 120 days per year. So that's 360 hours per year. Total possible. Under this regulation. And this, what I think is important is why the board enacted this regulation. They did it not only because in some cases, farm workers lived on employer property and were there for physically inaccessible. But because they determined that as a whole, whether they lived on employer property or not, it was necessary to ensure that farm workers who are generally migrants in an overwhelming number, migrants from other countries and are also migratory within the state of California, that they can receive information about their rights as workers, including the rights to unionize.
And in particular, the board found that the migratory nature of most farm workers impeded effective communication outside of the workplace. Because workers were moving into town for the harvest. They were living in motels and labor camps or with friends, sometimes on employer property, but not always. And then moving out to follow the next crop. And it's really different than when you think about an industrial workplace or like a factory where there are public sidewalks, there are parking lots. There are other ways that you can access workers when they're coming in and out of work. On a farm, there are no parking lots. Employees don't go from a parking lot to the fields. They actually regularly rely on contractors to transport them into the fields. There was no public transportation. There was farm worker-employer provided transportation. And so, there are no lunch rooms. There are no cafeterias. There's no off-site places where organizers can talk with employees. And so those conditions that existed in 1976 are still true today.
Today approximately 77% of farm workers are born outside of the United States. Many don't speak any English. Many speak other indigenous languages. And on average have only an eighth grade education. The average total income for farm workers in the United State is $17,500 to $20,000. In California, the average salary is a little higher because of the protections that have been won over time. But it's still not very high. It's $27,550. And so, you know, while this case has really been presented as being primarily about, you know, property rights and the takings clause, I think it's actually about something deeper, which is whether our society values the dignity and work of farm workers enough to let them have basic access to information about their workplace rights or whether we instead bow down to the alleged property interests of large corporations, like the farms that are in this case.
Jeffrey Rosen: [00:09:09] Thanks so much for that. Robert, the question that Hugh raises about the kind of access that union organizers have to workers was central at the oral argument, both Justice Kavanaugh and Justice Sotomayor pointed out that there's a strong case that this regulation goes too far under a Supreme Court decision called NLRB versus Babcock. That was a 1956 case that said business owners can exclude union organizers from their property if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message. So there was a factual debate in the oral argument about whether or not most workers today had cell phones and therefore they could be reached without this access, right. Or in fact whether they don't have cell phones and because of the working conditions that Hugh described, you still need special access rules. So what's your response to Justice Kavanaugh and Justice Sotomayor's suggestion that the case could be resolved under the Babcock test without reaching the broader takings clause issue.
Robert McNamara: [00:10:11] So I think the point Justice Kavanaugh was making is that in Babcock, the parties briefed the takings clause a lot, and they said it would be a taking to allow this kind of access. And what the Supreme Court said was no, we're going to interpret federal law to only require access sort of as a last resort. And if you apply that standard here, it doesn't seem like this is a last resort. I mean, certainly if it were the only way to reach farm workers, then farm workers would be completely unreachable in the states other than California that don't require this kind of access. I'm not sure that works though, because what I mean Justice Kavanaugh is sort of saying is the Court was engaging in constitutional avoidance in Babcock. It was avoiding the takings issue and we should do the same sort of constitutional avoidance here, except I'm not quite sure the Court can.
When the Court's interpreting a federal statute, it can say, ah, we're going to read this federal statute in a particular way to avoid a potential constitutional problem. It can't do the same thing when it's talking about state laws or state regulations. States have the final say on what their laws and regulations mean. And sort of the only question left for the federal courts is whether those laws and regulations violate the Constitution. So, it seemed like both Justice Kavanaugh and Justice Sotomayor were looking to Babcock as a narrower way through this without having to decide the constitutional property rights issue, but I'm just not sure on sort of basic federalism grounds that the U.S. Supreme Court gets to tell Californi, ah, we're going to spare you the constitutional problem that you have created by interpreting your own law in a way that you wouldn't recognize.
Jeffrey Rosen: [00:11:47] Thanks so much for that. Hugh, if the Court were to decide the case under Badcock, what would your argument be about why you should win under Babcock and why it's still important to create these access rules because it's not possible to reach union employees through other means?
Hugh Baran: [00:12:03] Well, I think taking a step back there is, there is a factual development problem in this case. So, the petitioners set out in this case to lose the district court level so that they could get this radical theory of property rights before the Supreme Court. And as a result, there is actually very limited factual record. Really no factual record below that the Court could look to to determine whether the workers here are really inaccessible or not. In fact, all there really is, is what is in the petitioner's complaint and the petitioners, as, you know, as McNamara, you know, sort of argued, Oh, they have cell phones, they have other ways of reaching them, and so everything is fine. Well, first the reality is that farm workers are still in many cases, living in inadequate housing that is difficult for union organizers to access. A recent report from the department of agriculture showed that because farm workers earn less, work shorter periods, and move frequently, they're more likely to live in very crowded conditions, less likely to own their own homes, more likely to receive free housing or employer housing, and more likely to live in mobile homes.
A large segment of the agricultural workforce lived in locations that frankly are not fit for human habitation, like vehicles, garages, sheds barns, condemn motels, squatter encampments. And so, just having a cell phone, you know, it wouldn't be enough because there's so many physical barriers to being able to have face to face access. But while some farm workers have cell phones, actually most farm workers continue to lead migratory lives. They're constantly changing jobs and addresses and often are frequently changing phone numbers based on whatever is cheapest at the time. And I also don't know about you, but when I got a text on my cell phone from someone I don't know, that's one of these sort of anonymous mass texts, I'm not inclined to trust it. Face-to-face communication in this context in particular is extremely important and is really the only way to get workers to get workers the basic information about their workplace rights that they need. And the only way to dependably have that is at the work site.
But let's also be clear about what the regulation does not allow. It does not allow for any communication with workers during work hours. It does not allow for any interference with employer property or the use of their property. If organizers do, they can be barred from ever returning to that property. The union can lose its access rights to that property. So this is a very, very, very limited access right. And if there have been factual findings below, what I think they would have shown is that in practice, the U S the United farm workers doesn't really access the work site even before and after work hours. Because as you can imagine, you're, 101, you're being driven into work by your employer. There's not really a lot of opportunity when you get there to talk with workers. The end of your day in the fields you're probably not so inclined to talk to an organizer. Really, the only practical time is the one hour and a lunch break. And in many cases, farms only give workers half an hour as a lunch break.
So, this really points to the problem here with not being able to have a developed factual record and having the court basically speculating about what the real access to farm workers is like, and whether it is possible to have effective communication with farm workers in some other way.
Jeffrey Rosen: [00:15:34] Thanks so much for that. Robert, so it's possible that the Court could decide the case narrowly under Babcock and have the business owners win on the theory that there are alternative ways of reaching the workers. But tell us about the core of your property rights argument. In the Penn Central case from the 1970s, the Supreme Court said that whether a regulation goes too far and violates the takings clause is an ad hoc inquiry, but there are more recent cases called Loretto and Lucas that said that physical invasions, however minor, are per se takings and you and your colleagues are arguing that the right to exclude and other fundamental attributes of property ownership deserve the categorical protection of the Loretta and Lucas case. No matter how small the interference with property rights is. Tell us more about that argument and why you think that the takings clause was violated here.
Robert McNamara: [00:16:34] Sure. So in the Penn Central case, the Suprem Court lays out the test for what's come to be known as regulatory takings of when the government's regulations of how you use your property go too far and become a taking. But what lower courts have frequently overlooked is the first question Penn Central says we have to ask is what's the character of the government's action, suggesting that there's a real difference between a government rule that says you can't build an eight story building, you can only build a five story building, and a government regulation that actually appropriates the property right. That actually comes into your property and physically invades you. And I think that is the primary thing we see at issue in this case is that what's going on is a recurring physical invasion of property. People are coming onto the property, against the will of the owner, on their own terms. And that is taking. That requires the government to take an easement, to allow people to come onto the property against the property owner's will. And I think that question is completely separate from the question of how important it is to allow organizers on the property in the first place.
You know, there are all sorts of things that the government might think are very important for people to hear. You can imagine the government thinking that, you know, ecological conservation is very important. And so we're going to require you to allow environmental activists to come into your office for three hours a day, four months a year, just to kind of harangue your employees about the importance of turning off their computer monitors. You can imagine a state government of a different stripe saying that social media censorship is incredibly important. And so you need to allow political activists into your office three hours a day to harangue you about cancel culture or whatever. And I think the answer to that is the reason the government can't do that is that I have a property right to exclude people from my property. I'm using my office as an office. If you want to come in and use it for your own purposes, I have the right to tell you no. And if the government wants to override that right, the government has to compensate me for it. And I don't think it matters exactly how many hours you're in, exactly how many days a year you're in, because what the government's doing is invading the property.
The question of how big the invasion is just goes to how much the government has to pay, to get the easement it wants. And if what the government's doing is important, then it can pay for the easement. And if what the government's doing really isn't that big an imposition on property rights, then the easement isn't going to cost that much money. But we have to start where the analysis starts, which is at the question of property rights. A property rights is being taken. And once we answer that, then the question of whether it's important enough for the government to pay for and how much the government has to pay flow separately. And if kind of the consequentialist arguments that are being made in favor of this regulation are true, then California will be happy to pay for these rights and these rights will be very cheap. But that's a question you can hash out once you litigate the actual taking.
Jeffrey Rosen: [00:19:29] Hugh, what do you make of the argument that any recurring physical invasion of private property is a taking because it's an easement allowing access to private property. Jonathan Thompson, on behalf of petitioners, made that argument before the Court, and he faced some skepticism from justices, ranging from Justice Alito who are wondering, how do you define the easement? Is it under California law or under common law? To Justice Barrett, who said that the line drawing is tough and if 365 days is too much is one day too little? So, how do you think the argument faired before the SupremeCcourt? And why do you think it's not persuasive?
Hugh Baran: [00:20:04] Well, it's long been understood that when you use your property for commercial activity, you open it up to rules that regulate that activity for the public good. The petitioners in this case and their allies like Mr. McNamara's organization, want to turn that on its head. They want to insist that this is a per se taking--any time that the government comes onto your property, that it has violated this, the right to exclude. You know, part of the problem is that the right to exclude is not the only proper part of property rights. We often talk about property rights as being a bundle of rights. So, certainly the right to exclude others is one of those rights, but it is not the sine qua non. It is not the be all and end all of what those rights are. There's the right to subdivide your property. There's the right to use your property for the purposes you want to. There's the right to sell your property, to mortgage your property, to have renters in your property. There's countless other rights that are bound up there. And none of them has actually been affected by this or this regulation.
For up to three hours a day, union organizers, two union organizers per work group typically, could come onto your property to talk to workers during non-working hours. They can't interfere with your business operations. They can't be doing anything during the working hours. In reality, the UFW only seeks these rights for no more than 30 days. And again, in practice workers are rarely accessible before and after work. So, we're really talking about talking to folks in their lunch break. And I think the real problem for the petitioners is that under current doctrine, regulations have only been interpreted as a per se taking when they totally deprive landowners of all viable economic use of a property or when they represent a permanent physical occupation. Neither of those are the case here. Beyond those examples, what courts generally do is they look at the facts on a case by case basis to determine whether a regulation operates as a taking. Again, that factual development was not allowed to happen here because the petitioners made their arguments, they issued a regulatory takings theory below in with the express goal of putting this case before the Supreme Court, on their radical theory of private property and the takings clause.
And so, the reason that, and let's take it another step back. Why are they targeting this regulation? There is no economic injury alleged in the petitioner's complaint at all. They are not seeking damages for this. They have not set an amount that they want as compensation. Again, no factual development was allowed to happen as to what that amount might be, which is something that the justices pointed out that, you know, how do we, even, if there was found to be a taking, how would the Court value what the just compensation would be? We don't know. The reason they are targeting this regulation is because even being able to speak to the workers at the work site for this limited period of time is practically the only way that farm workers can learn of their rights and then vote to join a union. Farms want to deprive the workers of these rights. Period. That is the goal here and, but what's scary is what else it puts at risk. Right? Well beyond this case.
Under Mr. McNamara's theory, under petitioner's theory, any regulation that authorizes the government or the government and some third party to come onto your property would potentially be taking, right? And suddenly, dozens of regulations, hundreds of regulations, and laws would be on the chopping block because there are many laws that permit the government to come onto property to conduct, for example, health and safety inspections, environmental inspections or food safety inspections. And including the mine safety and health act lets private parties come onto property along with the government to help inspect mines, to see whether they are fit and safe for people to work in. The food safety laws that we have actually require employers to let the government use offices in food plants and be to be able to inspect them regularly to ensure that the food we eat is safe.
So all of that, essentially on the chopping block and potentially even more worrying, our civil rights laws are on the chopping block because arguably, any non-discrimination law under petitioner's theory, limits the right to exclude potential employees or potential customers on the basis of race, gender, sexual orientation, other protect, or disability or other protected categories. And that's not, you know, this isn't a stalking horse. Businesses really did make that argument when the civil rights act, which was the law that forms the core of our federal anti-discrimination protections, was passed. And in a case called Heart of Atlanta Motel, the Supreme Court rejected that argument out of hand. But a ruling here, in favor of petitioners, would embolden employers and corporations to resurrect those arguments. Which threatens our civil rights protections, isn't it, you know, at the end of the day, you know, professor Niko Bowie writing in the New York Times argued that it would actually mean that if a black customer wanted to use a business, a white business owner could demand that the government pay for that access rights under this theory. And so I think that's really, it's really troubling and the implications are really dangerous.
Jeffrey Rosen: [00:25:57] Thanks so much for that. Robert, Hugh has just argued that under current doctrine, regulations are taking only when they totally deprive owners of all use or representative permanent physical occupation. He says that under your theory, any regulation that authorized the government to come onto property would be on the chopping block, ranging from health and safety regulations to food safety laws to civil rights laws. Justice Gorsuch asked a similar question of California's lawyer at the oral argument and asked him to respond to the charge that this would be quote revolutionary and the end of all regulatory regimes and the government would never be able to walk on anyone's property again. What is your response to that suggestion?
Robert McNamara: [00:26:36] Yes. Absolutely nothing my friend Mr. Baran just said is true. So to begin, I just want to address quickly: he keeps faulting the petitioners for not developing a factual record below. Their complaint was dismissed under rule 12 B6. They didn't eschew factual development. The court said this complaint doesn't state a claim for relief. But in terms of the consequences of this rule, it's true that in regulatory takings courts generally ask whether all economic value has been taken from a property owner, but that's in cases where the government's saying you can only build a five story building instead of a 10 story building. The court has recognized a separate category of takings, which are physical invasions, physical takings. And the court has said, if the government wants to come and just install a cable box on your roof, that is a physical invasion and that's a taking. And it doesn't matter that you can still subdivide your property and you can still mortgage your property.
They have come in and they've set up camp and, essentially what the theory of the respondents in this case is, is that cable box wouldn't have been a taking, if every month you came back in and you took it away for a day, and then the next day you came in and you put it back all takings are temporary in a sense because the government could always change its mind and decide to take things off your property or stop invading your property. Once there's a physical invasion, that's a taking and that's what the court has said. And since they've already said that, we can see that it doesn't have these drastic implications for other laws. Nothing about the takings theory in this case has anything to do with the government's power to investigate.
No one has ever had a property rights to bar the government, provided the government's using sufficient process, from coming in with a warrant, with an investigatory purpose. That's just not a property right. That's not a facet of your right to exclude. Neither is your right to violate anti-discrimination laws, because people who are subject to anti-discrimination laws, aren't exercising their right to exclude in the first place. They're saying, I want to have employees. They're saying, I want to have people come in and eat in my restaurant. And what anti-discrimination laws do is they say, if you do that, there are certain reasons you're not allowed to deny people that relationship. If you want to have a restaurant, you can't say, I'm going to refuse to serve you on grounds X, Y, and Z.
If you want to employ people, you can't say I'm going to refuse to employ you on grounds, XYZ. That's radical--and someone can say, I want to be an employee, I'm being discriminated against. We're not talking about people who want to be employees. No one wants to come onto these farms and get a job. They want to come onto the farm and do something that nobody else is doing. They want to come talk about something they think is important. And as I said before, there are lots of things that are important that people may want to talk about. But, if the government says they get to come sit here in my living room and talk to me about them when I don't want them there, the government has violated what I think we can all understand is a pretty important property right.
Yes, I can still mortgage my property. I can still subdivide my property. I can still, you know, refurbish my basement, but there's a guy in my living room and I don't want him there. And I think we all understand at a basic fundamental level that the right to just not have somebody come onto my property when I don't want them there, is what property is for in the most fundamental way. And that is why the court has historically treated physical invasions as different from simple regulations of how you use your property.
Jeffrey Rosen: [00:30:02] Thank you so much for that. Hugh, your response to Robert's argument, that there is a separate category of physical takings that are different from regulations of how you use your property. And the court could rule for the California growers on that property rights theory in a way that would not disrupt the entire regulatory state or civil rights regime.
Well, I think that Robert actually,Hugh Baran: [00:30:26] you know, Made some of my arguments for me, right? So like he said, with the context of our civil rights laws, the way we have historically understood them is that if you open your business up to having employees, you are subject to regulation on the basis of the employment relationship. And that regulation can include having work safety inspectors come without a warrant because there isn't a warrant requirement for those kinds of inspections currently. It can include having these organizers on property, so that employees can have their basic access, right, to form a union. They can know their rights about forming a union.
And again, the factual context is important, right? There are certain requirements about achieving representation for the union and for the workers to be able to have a representation by a union, and when those elections can occur that have to be met, and when people need information about that. Similarly, the government can come, you know, can come on to inspect whether there have been wage and hour violations. These are all things that we understand are part and parcel of the decision to have employees. And in this case, if the farms decided to change the use of their property, if they decided not to have workers and not run farms, or I don't know, if they decided to have all robot labor to plow their farms. They would not be subject to this access regulation. This access regulation only is about access to people. It is not about, at the end of the day, about changing or impinging on property rights. It doesn't create any occupation. It doesn't deprive the owners any use of their property. The only thing it does is let farm workers learn of their basic rights, and that is exactly what they want to stop.
Right. And if you look to the, you know, the Institute for Justice, its mission is to limit the size and scope of government power. Period. That is the mission of the Institute for Justice, Mr. McNamara's organization, and of many of the Amicae here, who are seeking rules that look like they are just limited and that they have dressed up sort of in legal ease to seem like they won't have very much public effect, but are actually sweeping, radical and far reaching and would undermine the regulatory state.
Jeffrey Rosen: [00:32:56] Thanks so much for that. Robert, your response, the mission of the Institute for Justice is indeed to defend limited government and to challenge regulations as violations of liberty. Do you believe that the property rights recognized here should sweep broadly and what other regulations do you think that the takings clause properly construed should call into question?
Robert McNamara: [00:33:22] Sure. I mean, I absolutely embrace the fact that the Institute for Justice is the national law firm for liberty and our mission is to reduce the size and scope of government to prevent it from violating basic constitutional rights. But I, frankly, disagree with the idea that we're involved in this case as some kind of stalking horse for anti-union sentiment because the reason we first became interested in this particular takings issue and in the question of physical invasion is in representing our clients whose homes have been destroyed by local police SWAT teams, who have, you know, needed in order to apprehend an unrelated fugitive have needed to destroy private property. And, on our view, that's a taking. Yes, they came in temporarily. Yes, but they also completely destroyed someone's home. And that should be understood as a violation of the takings clause. And I think there is a lot of space for the takings cause to restraint sort of genuine abuses of private property.
But part of getting the takings clause to restrain genuine abuses of private property is to persuade lower courts to recognize what the Supreme Court has long held, which is that physical invasions matter, physical destruction of property matters, physical occupation of property matters. And so we're coming at it from that perspective that, yes, this is a power of government that is frequently abused, that is frequently used to the detriment of private citizens. And we would like to see it more robustly enforced. Robust enforcement of it does not mean the complete decimation of the regulatory state-- you'd need a different case for that, but it does mean we're going to start to take takings seriously, even when the government is not building a parking lot that's there 365 days a year because the government can take away important property rights without building a permanent parking lot. And that really is what we're hoping to see the Supreme Court recognize in this case. And that's really why IJ is in the game here.
Jeffrey Rosen: [00:35:17] Thanks so much for that. Hugh, Justice Clarence Thomas at the argument also expressed concern about the idea that the national guard, for example, or the state police could be required to go onto businesses during non-business hours. At the same time, Justice Thomas wasn't convinced that this might qualify as an easement under California law. How did you read Justice Thomas in this case? And do you believe there is a majority on this court for recognizing the property rights that the Institute for Justice and others are you for?
Hugh Baran: [00:35:56] I would hesitate to say that I could read Justice Thomas's comments in any direction or or to indicate anything clear about where he will ultimately land in this case. I will say that I think that the fact that the court took this case at all, given the lack of factual development below, given that the petitioners sought to lose in lower courts so that they could get this theory up to the Supreme Court. And just to be clea, when the petitioner's complaint was initially dismissed by the district court, they had the opportunity to file a new pleading. They had the opportunity to amend their pleadings, to make different arguments or state different claims as is regularly the case in civil cases like this, and they declined to make arguments under existing regulatory takings doctrines, and to put forward the facts so that the lower court could actually assess whether there had been an injury, whether there had been a taking that required just compensation under existing court precedents.
Jeffrey Rosen: [00:36:59] Thanks so much for that. Robert, your response to his suggestion that this is part of an effort that culminate in the Janice case in 2018, where the court ruled that an employee who's not a member of a union couldn't be forced to pay union fees for the collective bargaining done on his behalf. That was a case where Justice Alito wrote and he was joined by the chief justice and justices Kennedy, Thomas, and Gorsuch. Is this indeed an effort to build on Janice? And do you, as you read the court after the oral argument, believe that there is in fact, a majority to rule broadly on your behalf?
Robert McNamara: [00:37:35] So, it's always hard to read the court in kind of the modern era. In the old days, you could kind of get a sense of justices because they would ask questions only of the side they were skeptical of. In the remote format, where each justice has to ask a question of each side, it turns out the justices are very smart. And so they ask very smart questions of both sides and it makes it much harder to count votes.
Jeffrey Rosen: [00:37:55] Thanks so much for that. Hugh, one final beat on the substance of the case before we turn to closing arguments. Did you count five justices who might be inclined to vote for the broad property rights theory or do you think the court will converge on a more moderate solution?
Hugh Baran: [00:38:11] Well, again, I think, you know, like Robert said, it's difficult to count votes and make predictions based, you know, and I agree that the format of the oral argument does, as it stands in the virtual era, does make that harder. I would say that I think the fact that the court took this case at all, given the clarity of its precedence on the subject and the petitioner's failure to really try to even advance arguments under those precedent, and particularly under the regulatory takings precedence is already troubling to me. It's clear to me that the court hasn't fully embraced either side's view, but it's searching for a clear rule that allows it to establish when a regulation permitting intermittent, physical intrusion onto property becomes a taking. I don't think there is such a clear rule. And I think the regulatory takings doctrine that we have already is a better friend, which is a case by case doctrine that actually looks at the facts of the intrusions and in the regulation, it's a better doctrine.
And you know, look at how extreme petitioners were here. Justice Barrett asked if a single hour on a single day in a single year is enough to constitute a taking that requires just compensation. And petitioners said, yes, they said that absolutely is a taking and they are not they're not trying to suggest otherwise. And I don't think it's clear that the justices agree with that radical notion. And so, I can't predict what the court will do here, but there was clear signs from many justices that they are troubled by the implications of petitioner's radical view.
Jeffrey Rosen: [00:39:58] Many thanks for that. Well, it's time for closing arguments in this rich and illuminating discussion. And Robert, the first one is to you. Why do you believe that the regulation at issue in the Cedar Point Nursery case violates the takings clause of the Constitution? And why should We the People listeners care about this case?
Robert McNamara: [00:40:19] Because I think if the takings clause doesn't cover physical invasions like this, if as Mr. Baran suggests, we're only left with the regulatory takings framework, then there really is no constitutional check on the government's ability to physically invade our property. It may well be that the union organizers here are perfectly well behaved and only show up and quietly talk to people on their lunch breaks, but that has nothing to do with the constitutional question. If all we're left with is regulatory takings, then it's not a taking. If the government says, I have to let people into my office for three hours every day to talk to me about cancel culture or environmentalism or anything else that the government deems important because that doesn't deprive me of all useful economic value of my property, I still have 21 hours of the day when I can get work done in my office. I still have 21 hours in the day when I can be at peace in my home. And I think we all intuitively understand that that's not enough. That's an invasion that matters, even if I retain the right to mortgage my home. And that's why I think if the answer is there's simply no line to be drawn here. All we have is the courts will intervene when 100% of the economic value of your property is taken is an unsatisfying answer.
And so there have to be rules governing when the government can physically intrude, when the government can force its way into your home, into your office, onto your land. And that's the line that has to be drawn. I will say, I'm not sure that a single hour of a single day of a single year is a taking and the federal circuit confronting cases like this has said that the distinction it's drawing is between something that's really the tort of trespass, a government worker parking his truck on your property to eat his lunch, and something that is a serious invasion. That is a recurring invasion, where the government comes in to occupy the land. And I think that's a reasonable distinction to draw. It's a line lower courts have tried to draw, and I think it's a line the Supreme Court should start to seriously draw in this case. It matters because all of us want to be secure on our property. We want to know that people can't force their way in, just because the government thinks they have something important to say. And that is a principle that matters, regardless of whether you actually agree that the thing is important or not.
Union organizing has a long and storied tradition in this country, and I don't mean to denigrate union organizing. What I mean to do is say the government has to respect my fundamental right to say, I don't necessarily want this person on my land, in my office, or in my home right now. And that's what this case is about.
Jeffrey Rosen: [00:42:47] Many, thanks for that. Hugh, last word is to you. Why do you believe that the California law at issue in this case does not violate the takings clause of the Constitution? And why should W the People listeners care about this case?
Hugh Baran: [00:42:59] So, let's go back to the text of the fifth amendment. The government can't take private property for public use without just compensation. Nothing has been taken from petitioners her. They still have full control over their property. They still have full rights to use it as they see fit or to stop using it as a farm, if they so wish. There is no real intrusion into their property rights that has affected an economic or tangible injury to them. It's long been understood that when you use your property for commercial activity, when you open it up from two employees, you open it up to rules that regulate that activity and that regulate employment for the public good. There are many state laws and federal laws that permit the government to come onto property. And that permit third parties to come onto property for limited purposes that are consistent with regulatory aims for the public good.
Health and safety inspections, environmental inspections, food safety inspections, minimum wage and overtime inspections. All of that, under petitioners really radical theory here, may be subject to review and ruled unconstitutional if the petitioners prevail. And even if those laws were to stand, under petitioner's view, the government would have to pay a property owner every time they wanted to conduct an inspection. So that's what they think the fifth amendment requires, that the government pay money to inspect an employer's premises for evidence of illegal conduct. That is so obviously not what the fifth amendment requires. And I think most people would be shocked if that became the view of our Supreme Court. This would totally sandbag our regulatory agencies and most troublingly, it would really seriously endanger the foundations of our critical civil rights laws, our critical non-discrimination protections that protect all of us from discrimination on the basis of race, gender, sexual orientation, gender identity, age, disability, national origin.
All of that is now is being put on the table. And that is the goal of the petitioners and their allies in this case. At the end of the day, what I keep coming back to are these farm workers who are largely migrants, largely Latin American origin, Asian origin, who are largely an immigrant work and an immigrant workforce that still faces extreme hardship, extreme poverty, extreme healh and safety violations and real, real dangers from which they need protection. And this regulation is very narrowly tailored to recognize the dangers and the hardships that these workers face every day in cultivating and harvesting the food that keeps all of us alive, keeps us fed. These workers do incredibly hard, backbreaking labor to make it possible for us to enjoy dinners and meals with our family and to live and do what we do every day. And those workers deserve basic protections. Letting an organizer come speak to them for a short amount of time and non-working hours so that they can get those protections, so that they can get the protections that come with a union and having a say in their job and being able to improve their wages and working conditions, that is something that is a perfectly reasonable limitation on an employer's property rights that does not actually deprivethe employer of anything.
And I think if the court really considers the implications for workers in this case and for workers around the country, I think it would have to recognize that this, to the extent there's any impingement here, it's neglibible, any impingement on employer's property rights, when compared with the real, tangible benefits for workers and for their lives.
Jeffrey Rosen: [00:47:16] Thank you so much, Robert McNamara and Hugh Baran for a thoughtful and nuanced discussion of complicated and important issues in the Cedar Point Nursery case. And thanks to each of you for defending your positions and helping all of us understand the issues with sincerity, clarity and integrity. Robert McNamara, Hugh Baran, thank you so much for joining.
Robert McNamara: [00:47:38] Thanks a lot for having me.
Hugh Baran: [00:47:39] Thank you.
Jeffrey Rosen: [00:47:42] Today's show was engineered by Kevin Kilbourne and produced by Jackie McDermott. Research was provided by Mac Taylor, Angelys Torres, and Lana Ulrich. Please rate, review, and subscribe to We the People on Apple podcasts and recommend the show to friends, colleagues, or anyone anywhere who is hungry for constitutional illumination and thoughtful debate. And who isn't? And always remember that the National Constitution Center is a private nonprofit. We rely on the generosity of people from across the country who are inspired by our nonpartisan mission of constitutional education and debate.
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On behalf of the National Constitution Center, I'm Jeffrey Rosen.
